Allahabad High Court
Faizan And Another vs State Of U.P.And Another on 27 March, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 90 Case :- CRIMINAL REVISION No. - 3513 of 2022 Revisionist :- Faizan And Another Opposite Party :- State Of U.P.And Another Counsel for Revisionist :- Neeraj Kumar Chaurasiya,Ch. Dil Nisar Counsel for Opposite Party :- G.A.,Manvendra Singh Hon'ble Syed Aftab Husain Rizvi,J.
Rejoinder affidavit filed on behalf of revisionists, is taken on record.
Heard Sri Ch. Dil Nisar, learned counsel for the revisionists, learned A.G.A. for the State and Sri Manvendra Singh, learned counsel for the O.P. No. 2.
This criminal revision has been filed against the order dated 29.7.2022 passed by Additional Session Judge/F.T.C. No. 2, Saharanpur in S.T. No. 1082 of 2022 (State Vs. Faizan and others) under section 376D, 377, 498A IPC and 3/4 D.P. Act, Crime No. 1458 of 2018, P.S. Deoband, District Saharanpur. By the impugned order learned court below has rejected discharge application under section 227 Cr.P.C. filed by the revisionists.
The brief facts of the case are that on an application under section 156(3) Cr.P.C. an FIR was lodged against 4 named and one unknown with the allegations that the complainant has dispute with her in-laws and they bear enmity with the complainant. On 17.8.2018 at about 7:00 p.m. when complainant with her brother Naushad was returning on a motorcycle and reached near Global School G.T. Road Deoband then a white coloured car overtook them and four assailants came out and threatened the complainant to kill them. They took complainant and her brother to sugar cane field and they committed rape with the complainant. They also committed unnatural offence with her. After investigation charge-sheet was submitted only against Faizan and Javed for offence under section 498A IPC and 3/4 D.P. Act. At the stage of cognizance learned Magistrate passed the cognizance order adding section 376D and 377 IPC. Revisionists challenged the order of cognizance by means of application U/s 482 Cr.P.C. No. 13194 of 2019 which was partly allowed for co-accused and it was rejected for the revisionists with a direction for seeking bail. It was also observed that they may move discharge application before the trial court at appropriate stage. Revisionists-accused filed a discharge application which has been rejected by the court below.
Learned counsel for the revisionists contended that FIR is highly belated lodged after a delay of more than two and half months by moving application under section 156(3) Cr.P.C. after taking legal advice. The charge-sheet was submitted only for offence under section 498A IPC and 3/4 D.P. Act. Section 376 and 377 IPC was deleted by the I.O. The learned Magistrate discarding the evidence collected by the I.O. has taken cognizance under section 498A, 376D and 377 IPC and 3/4 D.P. Act. It is also contended that O.P. No. 2 is an advocate by profession and doing legal practice at Deoband. Learned trial court has erroneously rejected the discharge application in a cursory and routine manner without applying the judicial mind. The impugned order is illegal and suffers from serious legal infirmities and is based on improper appreciation of fact and law. It is not sustainable in the eye of law. The FIR has been lodged against the entire family with legal advice. During investigation it was found that it is a matrimonial dispute and charge-sheet was filed only under section 498A IPC and 3/4 D.P. Act. It is also contended that according to exception 2 of Section 375 IPC provides that sexual intercourse by a man with his wife not being under 15 years of age is not rape. There is no medical examination of victim to support the allegations of 376D and 377 IPC. The location of the revisionists was found at Roorki town, District Haridwar and not at the alleged place of occurrence at Saharanpur. It is highly improbable that the real brother would commit rape and unnatural offence together.
Learned counsel for the O.P. No. 2 and learned A.G.A. submitted that cause of delay in lodging the FIR due to fact that FIR was not lodged by the police and then complainant has moved an application before the Magistrate U/s 156(3) Cr.P.C. and under the orders of Magistrate the FIR was lodged. There are specific and clear allegations which amounts to offence of gang rape and unnatural offence. The FIR was also registered under section 376D and 377 IPC. The victim and her borhter who is the eye witness of the incident has corroborated the allegations of the FIR. The I.O. in improper manner and without any sufficient reason has submitted the charge-sheet only under section 498A IPC and 3/4 D.P. Act against the revisionists. Learned Magistrate considering the entire facts and material available in the case diary at the time of taking cognizance has passed the cognizance order under section 376D, 377, 498A IPC and 3/4 D.P. Act. The revisionists challenged this order before this court and this court has not given any relief to the revisionists, so there is sufficient evidence on record on the basis of learned Magistrate has taken cognizance. The discharge application does not contain any new fact, same has been rightly rejected by the trial court. There is no illegality in the impugned summoning order.
The FIR of this case was registered for offence under section 376D and 377 IPC. The allegations of the FIR are that on 17.8.2018 at about 7:00 p.m. when the prosecutrix was returning from Saharanpur with her brother Naushad on a motorcycle a white car overtake them. Four miscreants came out from the car and with country made pistol threatened the prosecutrix and her brother. They took the prosecutrix in nearby sugar cane field and committed rape and unnatural offence with her while her brother was put on hold at the point out of country made pistol. After investigation charge-sheet was submitted for offence under section 498A IPC and 3/4 D.P. Act. At the time of cognizance the learned Magistrate vide order dated 11.2.2019 on the basis of material available on the case diary took the cognizance for offence under section 498A, 376D, 377 IPC and 3/4 D.P. Act. It is also apparent from the perusal of the record that this order of cognizance was challenged by the accused through Application U/s 482 Cr.P.C. No. 13194 of 2019 and this court vide order dated 9.4.2019 rejected the aforesaid application in respect of accused Faizan and Javed (revisionists). Thereafter, they moved a discharge application before the trial court which has been rejected. The prosecutrix and her brother Naushad both have supported the allegations made in the FIR in their statements recorded by the I.O. and on this basis the cognizance order was passed by the learned Magistrate adding section 376D and 377 IPC.
The learned court below in the impugned order has narrated the entire facts, material and evidence available on record. The learned Magistrate has considered the legal provision and proposition of law as laid down by the Apex Court and the High Court and after analyzing it has held that there is sufficient evidence on record to frame charge.
It is settled principle of law that at the stage of Section 227/228 Cr.P.C. accused can be discharged only when there is no sufficient ground for proceeding against them. Where from the statement of the complainant and other witnesses interrogated under section 161 Cr.P.C. a prima facie case is made out the framing of charge is justified. At this stage the court is not to judge meticulously the evidence proposed to be adduced by the prosecution. The court can not examine the pros and cons of the prosecution and record a finding about the probabilities of the prosecution case. It is also settled that at the stage of framing of charge what the court has to see is whether the material brought on record reasonably connect the accused with the crime. No more is required to inquire into. Only prima facie case is to be seen.
Considering the entire facts, evidence and other material on record the impugned order is just and proper. There is no illegality or infirmity in the impugned order and it need no interference.
The criminal revision is hereby dismissed.
Order Date :- 27.3.2023 Masarrat